April 12, 2012

I learned a great deal about the justice system by attending a Moot Court. I put my second wife through law school, and I read some of her assigned material, and even attended some classes.

I read the case book for the Moot Court trial. It was a rape case. The case book had lots of evidence for the guilt of the accused. The case book had lots of evidence for exoneration. Defense and prosecution worked from the same information. The role of opposing attorneys was to get as much of the evidence for their side into the trial, and keep as much of the opposing evidence out.

This is not just an academic exercise. It is what many prosecutors are confronted with. They may feel that there is sufficient evidence to go to trial, though they understand that the defense will use evidence that could get the accused an acquittal. It is not necessarily true that they are absolutely sure "he done it." But they feel they have to go to trial and let the jury decide guilt or innocence.

March 09, 2012

Move over, BPA, make room for the new kid on the block: 4- MI ( the 'cute' name for 4-methylimidazole), a byproduct of the process used to create one of the coloring agents used in what is obliquely termed 'caramel color' on the ingredients list of many processed foods, most notably sodas like Coca Cola and Pepsi.

The Center for Science in Public Interest had submitted a docket to the FDA, requesting that the caramel colorings with 4-MI be banned, but can claim success of a different sort from what it had hoped. Because of regulations in the state of California, where Coke and Pepsi would have had to label their drinks with warnings similar to "This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm."

If it causes cancer in California, surely, it must cause cancer elsewhere. Ah, the power of truth in advertisement, and the things manufacturers will do in order to not have to issue disclaimers that their product contains substances that are considered carcinogens, even it is only in California. Or is the fear that they could be sued in California by any private citizen or group over the 4-MI in their formulation? This article sheds more light on their concerns.

"Our member companies will still use caramel coloring in certain products, as always. The companies that make caramel coloring for our members' soft drinks are producing it to meet California's new standard,” the beverage association said in a separate statement.

“Consumers will notice no difference in our products and have no reason at all for any health concerns.”

The question is still up in the air as to whether the results of lab tests that show that 4-MI is indeed carcinogenic in lab rats, at high concentrations that far exceed the normal levels that even the most avid drinker of sodas would be exposed to, can be used to argue that 4-MI in caramel color is indeed responsible for a variety of cancers in the population ingesting it. My guess is that at best, it would be one of a gazillion contributing factors towards any cancers that did develop.

November 24, 2011

'Pepper Spray Cop' of UC Davis goes back in time to make things right (Norman Costa)

Scientists are hailing the 'first of its kind' opportunity to go back in time and undo a terrible mistake. Lt. John Pike, now known as the infamous 'Pepper Spray Cop of U.C. Davis,' went back in time to change the way he handled the breakup of a peaceful student protest. It was not something he planned on, but, a freak accident gave him the opportunity for a do-over, and be the first human to travel back in time.

Immediately after Pike was suspended, he fled to Europe to avoid the press and aggressive process servers. Quickly, he got a job as a security guard at a scientific research lab in Switzerland. The accident happened on Wednesday, November 23, 2011 at 1650 hours, GMT. He walked into an area where neutrino research was underway. Officer Pike thought he was going into a utility room for HVAC. He walked directly in front of a massively energized neutrino beam and vanished from sight.

Two days ago Lt. John Pike gave a press conference to explained what happened today. He said he was dazed for a short time before realizing he had traveled back in time to about 3 days before the pepper straying incident at UC Davis. He went to an airport, immediately, to fly back to Davis. After a complication regarding his frequent flier miles – he hadn't yet flown from California to Switzerland so his mileage had not been recorded – he was issued a ticket and flew home.

We at TTNN received a video tape, three days ago, of Pike's 're-do' of handling the protest. We were stunned when we saw it, and we concluded it was a some kind of hoax and threw it out, but not before transcribing the audio. With the benefit of hindsight – actually time travel – we changed our minds and will now read the transcript of the audio portion.

May I have your attention. I am Lt. John Pike, Supervising Officer of the Security Police at UC Davis. My officers and I are a legitimate law enforcement and peace keeping force under the Constitution of the State of California. We have the same powers of arrest, enforcement, and investigation that other police units have in California.

We respect and will protect your rights to protest and assembly. However, some of you are blocking a passage that is usually used for pedestrian traffic for members of the university and others. You can continue your peaceful demonstration 15 yards in that direction, and avoid blocking other people who are exercising their rights to come and go on this campus.

My superior in the University Administration directed me to clear the pedestrian traffic areas blocked by this demonstration. I am empowered to give you a lawful order to move out of the pedestrian traffic flow. Before I have to do that, I am asking you to move, of your own accord, 15 yards to your right. If you do not, then I have the legal authority to order you to disperse. If you do not obey a lawful order from the police, you are subject to physical removal by my officers, and being arrested.

…

I am now giving you a lawful order, for the third time, to disperse and clear the pedestrian traffic area. In a moment I will give my officers the order to clear you from the area. Before I do that, I want to tell you how it is going to work. First, there will be no use of tear gas, pepper spray, billy clubs or truncheons. You have not been violent, so there is no need for us to use that kind of force. The officers will separate you, one at a time, handcuff you, and take you to a staging area over there. You will be photographed, and then issued an appearance summons. That means you must appear before a judge and explain yourself. After a period of time you will be released from your handcuffs and you will be free to go.

If you do not release your arm locks with each other, my officers will have to use physical force to separate you. We do not wish to cause you harm, and I do not want any harm to come to my officers. However, my officers will have to pry your arms and fingers loose. We will not use any more force than is necessary. When my officers approach you they will tap you on the shoulder. That is your command to release your hold, stand up, and go with the officer to the staging area. If you do not respond to this command then the officers will pry you loose and take you forcefully.

If you struggle against my officers, or you attempt to use any force on them, they will subdue you on the spot, put you to the ground, cuff you, and you will be arrested and brought to jail. We do not want to do this. We appreciate that you have been peaceful in your protest. This is your last chance to remove yourself from the pedestrian traffic area.

…

Officers, clear the protesters from this area and take them into custody as planned.

So there you have it – two of the strangest confrontations of police and protesters in history, and in history. There was another complication in this matter, one that pleased the many arrested protesters. Yesterday was the first day of the scheduled hearings before a judge. The court was thrown into disarray and confusion for most of the session. The one-time protesters presented their appearance tickets, but there was nothing on the docket, and there were no records of the summonses being issued. A number of UC Davis police officers were called into court to verify the arrests. The surprised officers could not recall making any arrests on the day in question. This went on for several more days until all 87 arrested protesters presented themselves in court. The judge sent everyone home.

Editor’s Note: This is the first part of “Mind’s Matter”, a new series of articles by Dr. Jonathan Pararajasingham, exploring the Neurobiological basis of behaviour.

“We serial killers are your sons, we are your husbands, we are everywhere.” – Ted BundyOne of the most controversial areas of research in neuroscience involves the search for biophysical causes of sadistic thought and behaviour. But there now seems to be enough complementary evidence to at least begin piecing together a coherent materialistic description of the psychopathic mind. A number of potential genetic and pathophysiological causes of violence and aggression have been investigated over recent years. These include things like the monoamine oxidase A gene, head trauma, serotonin deficiency, epilepsy, stress, and neuropeptides. But since the recent surge in quality of neuroimaging techniques, we are now finding exceptionally detailed anatomical correlates to certain types of behaviour, including antisocialism and criminality. Research now points to the discovery that impulsive aggression and violence arise as a consequence of faulty emotion regulation circuitry in the brain. In this paper I aim to outline the evidence and implications of this finding.

October 26, 2011

“We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” --US Supreme Court Justice Anthony Kennedy in "Citizens United.

Super-Soft Money: How Justice Kennedy paved the way for “SuperPACS” and the return of soft money.

By Richard L. Hasen

Soft money is coming back to national politics, and in a big way. And we can blame it all on a single sentence in Justice Anthony Kennedy’s opinion in 2010’s controversial Citizens United decision—a sentence that was unnecessary to resolve the case.

In this election cycle, “superPACs” will likely replace political parties as a conduit for large, often secret contributions, allowing an end run around the $2,500 individual contribution limit and the bar on corporate and labor contributions to federal candidates.* To understand how we got into this predicament, we need to go back briefly to the 1970s. In the wake of Watergate and other money-in-politics scandals, Congress imposed tough new campaign finance restrictions. Not only did the law limit contributions to federal candidates to $1,000 per person (an amount it eventually raised to $2,000 and indexed to inflation), it also limited independent spending—that is, no one person or group could spend more than that amount—to $1,000. In a Solomonic 1976 decision, the Supreme Court in Buckley v. Valeo split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.

October 11, 2011

My post below defending Steve Pinker’s The Better Angels of Our Nature elicited some responses on twitter. Robert Lee Hotz finds it odd that I defend a book I haven’t read. My logic here is simple: the outline of the argument in The Better Angels of Our Nature has been presented in shorter form. John Gray’s piece doesn’t even address this digest, so I am skeptical that it could address the data which is no doubt strewn across hundreds of pages. It is obviously theoretically possible that The Better Angels of Our Nature is thinner in results than the shorter essays and presentations I’ve seen over the years on the same topic from Pinker, but highly unlikely. If Gray does a disservice to the short form argument, I doubt he is being any fairer to a longer exposition.

Second, I already admitted that in many ways I’m more pessimistic than Steven Pinker when it comes to this issue. And from what I’ve seen I’m moderately skeptical of many of the rationales he presents for why violence has declined over time (though obviously I won’t be doing him justice if I come to any conclusion without reading the book with all its extended argumentation). But my issue with John Gray ultimately is not with his final assessment of Pinker’s argument on the net, but how he came by it. Steven Pinker is a serious thinker, who makes a good faith effort to arrive at the truth as he understands it. I don’t think he always succeeds, and I don’t always agree with his conclusions. But even if you disagree with him engaging someone like Steven Pinker can sharpen your own perspective, and refine your own models. Steven Pinker is not a fashionable intellectual whose aim in life is to receive adulation by the right people at the right time. He may be wrong, whether due to lack of background or faulty reasoning, but he’s a sincere person. I have friends and acquaintances who take great objection to his evolutionary psychology and representation of cognitive science, but even his false steps can serve as an opening to raise public awareness of your opposite perspective. Pinker’s stature, and the questions he shines the light upon, are opportunities to have a public discussion on the Big Ideas. If you’re going to criticize him, face his ideas full on, don’t just prance around preening so those with whom you already agree can see what a good and right person you are. That’s what John Gray did, and it disgusted me.

September 30, 2011

This is another reason why the U.S. should abolish capital punishment. We have little moral force when we protest the possible execution of a citizen of another country.

"By Dan Merica, CNN

"Washington (CNN) – The White House Thursday condemned the conviction of an Iranian pastor, who may be executed in Tehran for refusing to recant his religious beliefs and convert from Christianity to Islam."

September 29, 2011

"The three men spent 18 years behind bars for a brutal crime they said they did not commit. Locked away for life -- with one of them sentenced to death -- the men thought they would never experience freedom again.

"They had been imprisoned for the brutal 1993 murders of three young boys in West Memphis, Arkansas. Evidence against the men was circumstantial, however, and doubts grew over the years about their guilt.

"Finally, nearly two decades after the crime, the men were allowed to walk free last month, the result of a complicated plea agreement requiring them to plead guilty even while declaring their innocence."

September 22, 2011

"Editor's note: Mark Osler, a professor of law at the University of St. Thomas Law School in Minnesota, is a former federal prosecutor and the author of "Jesus on Death Row," a book about capital punishment.

"(CNN) -- When I was a federal prosecutor, I had some sleepless nights. On a few occasions, it was after I had lost at trial; I would lie in bed and think of what I did wrong.

"Other times, though, my sleepless hours came after I had won a trial or gotten what I wanted at sentencing. The haunting question was always the same: What if I was wrong?"

A friend of mine was summoned for jury duty. It was a capital case. During the voir dire, the prosecuting attorney asked Bill if he could vote to convict a guilty man who would be sentenced to death. Bill answered, “No!” He was opposed to the death penalty on personal and religious reasons. Bill was excused from the jury panel.

Philosophically, I am not opposed to the death penalty. However, I believe it should be abolished for a number of practical reasons.

1. It is impossible to administer a judicial process leading to an execution that is consistently fair, unbiased, and without error.

2. A death sentence starts a process that is very costly to the tax payers of the State. The appeals process is prescribed and made mandatory by law. The appeals process, and the many variants of appeals of appeals, costs hundreds of thousands of dollars. In many cases, the burden on the State treasury runs into the millions. The long term incarceration of capital criminals, who would otherwise be executed, is less costly than a legal system that carries out a death sentence.

3. The administration of capital justice is a heavy burden that affects the morale and mental well being of the people who staff the death row corridors of our prisons.

4. Abolishing the death penalty would put the United States on a par with most of the countries of the world. We lose any moral advantage when, as a country, we oppose an execution in another country because we feel it is unfair or unjust.

5. Eliminating the death penalty provides time for successful appeals or retrials. Posthumous exoneration is small comfort for friends and family, and none for the innocent prisoner.

6. A lifetime in jail, rather than death at the gallows, offers the convicted a chance to reflect on his or her crime and to come to terms with the consequences of their actions. This will be lost on the sociopath, but others may benefit in a personal or spiritual way.

Let's turn to the matter of Troy Davis. As I started writing this essay, a yellow banner appeared on the CNN home page on my browser. Troy Davis was just executed in Georgia. I will not discuss the merits of the opposing sides on this case. Rather, I would like to discuss some broader issues that are not understood very well, if at all, about our justice system and the appeals process in criminal matters.

Our system of justice is not focused on getting it right. The emphasis is on fairness. The familiar adage, “Innocent until proven guilty,” means that you are entitled to a FAIR trial, not to a perfect outcome. An instructive experience is sitting in on a moot court trial in law school. I highly recommend it to anyone who wants to understand the difference between making it a fair fight versus finding the truth. Make sure you read a copy of the case before you watch the trial.

The case file has solid evidence of the guilt of the accused. It also has evidence that contradicts the charge of committing a crime. There is evidence that is less than clear on both sides. The job of the prosecuting and defending student attorneys is to mount their case, present the evidence, and use all the procedural tricks of the trade against the opposing side and it's evidence. The published case does not lead to a clear verdict on either side. A successful conviction or successful defense will depend solely upon the preparation and trial skills of the jousting knights.

The appeals process is not what most people think it is. The average citizen believes that the appeals process determines if the jury got it right and rendered the correct verdict. There are exceptions, but the appeals process is less concerned with the jury getting it right, than with making sure the procedures of law, criminal trial, and rules of evidence were fairly administered.

The concept of the fair trial is sacrosanct in our system of justice. It is such a important foundation of our government and our society that we do not let a jury, or any other faction in our legal system, impeach the process. A juror announces after trial that she would not have rendered a guilty vote if she knew that the death penalty would be imposed. Another juror announces that he made a mistake in voting for a guilty verdict. He did not understand a very important aspect of the evidence presented at trial. In spite of this, it is rare that the verdict will be overturned. The jury cannot, and is not allowed to, impeach its own process.

The same can be said about witnesses who, later, recant their testimony. Barring the finding of clear, unopposed, and overwhelming evidence, and the conversion of the prosecutors office, the appeals process is unlikely to overturn the verdict that was the outcome of a fairly administered process. All things being equal, recanting witnesses do not a reversal make. Recanting witnesses cannot impeach a fair process – one in which they were contributing players.

How do we take a justice system that focuses on fairness of process, and get it closer to a focus on the truth? The most radical idea for the United States is to transform the jury system of criminal justice into one that is presided over by panels of professional judges. You see this in Europe and in many quarters of the world. The judges do the questioning and investigating. The judges vote to render a verdict. A court room is not a jousting tournament for lawyers. Their role is very different.

This is very unlikely to be implemented in the U.S. for criminal trials. That leaves us with only a few avenues of reform. One is better training, higher education requirements, and improved managerial supervision of police. Effective citizen review of their law enforcement employees (police work for the citizens) has been talked about for years, but is largely a joke. Police do not want to be reviewed by the citizens who hire them and pay their salaries. What would have been the outcome of the Troy Davis trial if Georgia had had a system of effective civilian review boards?

Finally, State and local legislatures and political leaders have to establish law, policy, and funding to give the accused (and the convicted) access to modern forensic science.

August 30, 2011

I'm thinking of taking a train into NYC on Sunday, 9/11/2011. I won't get anywhere near Ground Zero to see the commemorative ceremonies, and certainly not be able to approach the Memorial. I was there over a year ago. The site was cleaned up and looked like one of those old movie sets for filming a story about building the Great Pyramid with ramps descending into a cavernous foundation.

Imagine Cecil B. DeMille's stage directors placing heavy blocks to be moved up and down the ramp. Hundreds of extras are dispersed around the set. Scaffolding, ropes, cranes, shovels, wheel barrows, and hammers are specs of stage props in a huge open air theatre.

I'm hoping to see, for the first time, a materialization from the ashes of obliterated people and structures. I would really like to see a rejuvenation of pride and confidence in New Yorkers and in everyone. I'm still wondering if I'll feel that way. I think that's the real reason I want to go to Ground Zero - why I want to place myself midst the others who will make the pilgrimage and pay their respects.

I was there when the Twin Towers were going up. I followed news stories of the progress, and interesting copy on the engineering and construction of these monoliths. Critics went up one side and down the other of the edifices and the architechs. To hell with the critics, I loved the Twin Towers from the beginning. I don't know how many times I was at Windows on the World having a drink or something to eat. The view of the East River was my favorite. You could see the FDR Drive, the jigsaw puzzle of Federal, City, and State buildings, the BMW bridges (Oh, yeah!), and the reflected sunset from the West, courtesy of the people of New Jersey.

Today, as then, my favorite view of Manhattan is from Queens, driving on the highway leading to the Queens-Midtown tunnel. It was breath taking for me, and for anyone I took on a visit to New York City. I am not being sentimental when I say that, for me, I grieve when I see that monstrous vacuum in the skyline at the southern tip of Manhattan. If I didn't have to attend to driving, I would pull over and sit and look, as I would at the graveside of a friend or family. There is a big hole in the sky, and it will never be the same.

By sheer accident, three of my family members who worked at the WTC survived the horror: My cousin received a last minute change in assignment from his supervisor; My son-in-law was late for a Path train from New Jersey into lower Manhattan; my daughter's father-in-law had a scheduled off-site meeting. I and my family were lucky and we are very grateful.

Three-thousand human beings perished; family and friends by the tens of thousands were grieving; our country, and most of the world, were in shock. Now, we have many hundreds of responders who survived the first horror, but were harmed in the process of rescue, recovery, and demolition. Their families are now added to the list of collateral damage from the original devastation

I hope I can take that train into Grand Central Terminal on Sunday morning, 9/11. I think I will regret it if I don't. A Resurrection is meant for all of us.

June 27, 2011

A few people have asked me about the Geert Wilders’ affair. If you don’t know Geert Wilders’ is a right-wing Dutch politician prone to making inflammatory remarks about Islam. He’s been brought to court on the grounds of whether his comments violated the speech laws in much of Europe, which sanction inciting or hateful speech.

The main issue as an American that one always has about these sort of things is that because of the First Amendment and the way it has been interpreted our social norms are such that in regards to speech we are exceedingly liberal. Prosecuting Wilders would not be an issue in the United States. Rather, it is much more likely that he’d be marginalized and ignored as a kook.

From my perspective the main problem with prosecutions for hate speech in relation to Islam and immigrants in Europe is that these attempts seem like banning lying; it’s a nominal and symbolic salve on the underlying diseases. Additionally, one must note that the attacks are focused on Muslim immigrants in particular, who from what I can tell have shown (in part) the greatest concerted collective resistance to becoming absorbed into the “European consensus,” as it has evolved.

Some of Wilders’ statements are so extreme and strange that I can’t but help believe that he’s working the Overton window. And from what I’ve read his strategy has worked, the whole center of gravity of public discourse has shifted in the Netherlands and much of Europe. The very fact that Wilders was acquitted is probably a reflection of this, as the enforcement of these laws often is a signal of public mood.

Overall I think there are several issues in Europe which must be addressed in the near future which are relevant to the rise of the right-wing sentiment:

- The likely unworkability of the European “super-state” because of cultural incompabilities

- The nature of employment regulation in Europe which discourages labor market mobility and fluidity

- The welfare state predicated on a common set of values affinity across lines of class and age not always compatible with a multicultural order

- The cultural insularity of many minority ethnic groups in Europe, especially Muslims, vis-a-vis the mainstream

And that’s the tip of the iceberg. The main problem is that because of the nature of politics many of these issues are neatly reduced into catchphrases. Muslim populations in Europe complaining of racism neatly neglect that black Africans who are not Muslim probably experience as much racism, but are not the locus of social unrest or panic, in part because they don’t pose a coherent challenge to Europe as it is. Anti-immigrant voices neglect the fact that even if all immigrants left tomorrow Europe would still be facing massive structural problems because of the reality of their demographics, as fewer and fewer young people are supporting large populations of economically inactive older pensioners.

(Since I was one of the people who asked Razib to comment on the ruling by the Dutch court, I have his permission to copy the post here.)

May 20, 2011

Once again, the news cycle is dominated by stories of powerful men embroiled in sexual behavior which is at best unsavory in one instance and probably criminal in another. Boys will be boys, right? And it is none of our business, most of the time. But older men in positions of power are not adolescent boys and predatory behavior resembling a rutting chimpanzee or treating women like prosciutto, if shrugged off will lead sooner or later, to unlawful actions. The French, often haughtily condescending towards the puritanical Americans are beginning to see the difference between elaborate seduction and aggressive sexual harrassment. At least French women are beginning to do some soul searching to evaluate what they may be putting up with in a culture that prides itself in being free of sexual hang-ups. But France's male intellectuals still don't seem to get it. David Rieff in The New Republic.

Early in the summer of 1995, a colleague and I went into South Sudan to report from the side of the South Sudanese guerrilla army, the SPLA. At dinner on the day we arrived, completely out of the blue, one of our minders turned to me and said, “I am so sorry about this Gennifer Flowers.” I had expected to talk about many things in South Sudan, but the woman with whom Bill Clinton had had an affair in the 1980s was certainly not one of them. Not quite sure of how I should answer, I took refuge in sanctimonious platitudes. We take sexual exploitation of women by powerful men very seriously in the United States, I said. Hearing this, the minder only smiled. “With us,” he said, “the fault is always with the woman.”

I have not thought of this incident for years, but the reaction of so many leading French public figures—and not just his allies within the French Socialist Party—to the arrest of Dominique Strauss-Kahn brought it all back to me. The International Monetary Fund’s managing director who, until this week, was widely believed to have a good chance of being elected president of France in next year’s elections is facing seven charges, including attempted rape and unlawful imprisonment of a maid at the New York hotel in which he was staying. From Bernard-Henri Lévy to Jean Daniel, the longtime editor of the weekly Le Nouvel Observateur, to the distinguished human rights lawyer turned politician Robert Badinter, who, as Francois Mitterand’s justice minister secured the abolition of the death penalty, the French elite consensus seems to be that it is Strauss-Kahn himself and not the 32-year-old maid who is the true victim of this drama.

To be sure, Strauss-Kahn might not be guilty. But French intellectuals’ vociferous defense of him, without all the facts of the situation, goes too far. In his weekly column in Le Point, Lévy asked “how a chambermaid could have walked in alone, contrary to the habitual practice of most New York hotels of sending a ‘cleaning brigade’ of two people, into the room of one of the most closely watched figures on the planet.” For his part, Daniel wrote in an editorial for his magazine that the fate meted out to DSK, as Strauss-Kahn is generally referred to in the French press, has made him think that, “We [French] and the Americans do not belong to the same civilization,” and demanded to know—shades of my guerrilla friend in South Sudan—why “the supposed victim was treated as worthy and beyond any suspicion?”

Dominique Strauss-Kahn will have his day in court. Thank goodness it will be an American court. After all, in France it is believed that Roman Polanski is too talented to be tried for anything as trite as child rape.

As for Arnold, who as far as we know, has not committed a crime in responding recklessly to his libido, his fortunes on or off the movie screen, will be determined by the court of public opinion (and the Kennedy clan's vast influence).

May 02, 2011

Justice is an interesting word. It serves as the front man for a number
of different and sometimes incompatible concepts: revenge, retribution,
restoration, fate, fairness, equality. In everyday use it often boils
down to a sense of cosmic righteousness, a position that takes the
universe (or a god) to be a fair and neutral arbiter, an automatic karma
balancer, or, at a minimum, a provider of fate.

Since justice has so many meanings, it's not always clear what someone is
trying to express when they use the word. Making matters worse, even when
parties agree on the definition, they often disagree on the act necessary
to make it so. It's almost universally agreed, at least in the U.S.,
that justice in the case of murder has a heavy shade of retribution about
it, yet capital punishment remains contentious.

Other basic questions abound. Does justice necessarily demand only moral
actions in its name? Some of the conceptualizations seem to explicitly
disregard the morality of the action that brings about a course of
justice. Revenge has a long history with the entire spectrum moral
behavior, while restoration seems to have a specifically moral nature
about it. Let us not even dive into the disagreements of what is or is
not moral behavior. And it might be argued the other way
around, that what is moral is, by its nature, just. Of course, that doesn't rule out
those acts which are amoral or immoral.

It turns out that justice is a tricky word, its use often leading us to
believe we are dishing out universal truths while instead merely
expressing the particular dynamic of justice that fits our feelings best
in the moment. Therefore, I don't put too much emphasis on the cries that
justice has been done in the killing of Osama bin Laden. We are still in the
early hours and days after his death, and the immediate reaction is
understandable, particular from those personally affected by 9/11. His
death has all the feelings of personal revenge: we, the U.S., have been
furiously pursuing (haven't we?) bin Laden for a decade, using every means
at our disposal to find, capture or kill, and to close the book on the man
who planned the largest terrorist attack in recent American history.

March 22, 2011

I don't know how to characterize this story except as a stubborn (and hilarious) philosophical debate.. That this is a real life event and tax payer funds are involved, makes it excruciating. (h/t Leo Lincourt)

CLEVELAND, Ohio -- What is a photocopier?

That seems like such a simple question.

But last year, a lawyer in a public-records case being heard by the Ohio Supreme Court had a hard time getting a $64,000-a-year Cuyahoga County worker to say whether the county recorder's office had a photocopier.

The effort consumes nearly 10 pages of a court transcript.

The overall case is about whether deeds and other records at the county recorder's office -- records that were collected and are maintained with your taxes -- should be readily available at reasonable cost.

The lawyers involved in the casesay the question about the photocopier is technical, getting at an arcane point of law.

January 24, 2011

What would your biography look like if it was written by Google? Would Google emphasize the same aspects of your character and life story that you would?

If a set of court cases currently working their way through the Spanish justice system is any indication, Google would likely select the moments in history when you were at your lowest, splashing them across the book cover.

Imagine you run a childcare facility. A group of deeply religious parents spot a picture of Richard Dawkins on your desk, and decides you are Satanist and likely sexually abusing their children. Questionable psychiatrists, practicing the respected art of hypnotism, find plenty of repressed memories in the kids, and an indictment is secured. Prosecutors, doing their job, train the children to cry on the stand. After a month of hyped-up media coverage of the trial, the jury finds in your favor, the case is dismissed, and no grounds for appeal are found.

January 21, 2011

A little over a month ago Wikileaks began to release U.S. State Department diplomatic cables and politicians cried. Previously, Wikileaks had released U.S. Army SIGACT reports, detailing nearly every engagement in Afghanistan since the invasion, and politicians cried. Before that Wikileaks had released the Iraq War logs, before that the Apache attack on Reuters journalists. And the politicians cried.

The conflict between Wikileaks and their supporters, and the governments of the world is not strictly about secrecy versus transparency, or the extent of first-amendment rights granted to the citizenry. Most of the media analysis has focused on the perceived conflict between secrecy and security, a simplistic dichotomy that fails to capture the complexity of security, leading to the acceptance of policies that do little to keep anyone safe, yet create agonizing situations for average citizens. On the right, calls for the murder of Julian Assange and his associates have been par for the course, while the left has blamed (not entirely without reason) the failure of the mainstream media to sufficiently counter government’s endless desire for secrecy. The argument goes something like, if media did its job and demanded accountability for government misdeeds, then such “extreme” leaks would be unnecessary.

The analysis that falls outside this rubric of conversation focuses largely on Assange as a larger than life character. Some of the more interesting writing discusses Assange’s political philosophy [1, 2, 3], found in his archived blog from the mid-00s [4]. In his posts, Assange lays out a simple set of principles and a suggested course of action:

Power structures which are unaccountable and authoritarian act in unjust ways.

Authoritarian power structures use secrecy to protect their power.

Their use of secrecy makes them a form of conspiracy.

Conspiracies can not survive when their secrets are exposed.

Therefore, to increase justice in the world, one must expose the secrets of conspiracies.

I’m skipping a lot of the details and nuance in this bullet point summary, but those are the basics. The use of the word “conspiracy” has caused some consternation in those analyzing Assange’s writing, but it can be removed without change to the main thesis: unaccountable power acts unjustly, and must be brought to account. Assange’s version is more radical than most, and he talks of his desire to “﻿destroy this invisible government,” using a quote from Theodore Roosevelt [1, 5]. He clearly has an anarchist’s desire to push power down to the small, and his seeming disregard for the possible side effects of information exposure is concerning at points.

But his main thesis reduces, more or less, to the core statement of the republican revolutions of the last 300 years, and the heart of the democratic ideal: men should not have power over other men unless that power is justified and granted by the governed. It’s all there, in its radical beauty, both anarchic and democratic at once.

There has been little discussion about such ideals after the release of the diplomatic cables. Many of the older Wikleaks releases deal with known or suspected corrupt entities, both governments and companies, and were heralded by the Western media and (a few) politicians as a boon for democracy. Even when the U.S. Department of Defense tried to claim that battlefield tactics would be compromised by the release of the Iraq and Afghanistan war logs, some media figures responded that the information gleaned (torture, civilian killings, contractor abuse and waste, etc, etc) was far more valuable for the democratic process than the risk posed to troops.

The release of the diplomatic cables saw most of these defenders melt away, particularly in the U.S. Seen as a step too far, the public release of the cables threatened world stability and the security of the U.S., world peace, and risked immediate war in the Middle East and the Korean peninsula. These concerns were not entirely without merit, particularly in the case of North Korea, where the revelation that China would support a Korean peninsula unified under Seoul could have provoked additional belligerence from the unpredictable North.

But what of democratic ideals? Do they disappear whenever risk presents itself?

It would be naive not to admit to the real tension between the risk and democracy, but we are at risk of stumbling back into the false dichotomy between secrecy and security once more. Instead, this tension should be regarded as a natural outcome of democracy. The tendency in a healthy democracy would be toward the assumption of non-systemic risk, such as terrorism or an unprovoked attack, in return for increased democratic participation and decision making. After all, what is necessary for democracy to function? Is not information one core ingredient?

In the West it is accepted that democracy is impossible without a well informed citizenry. Yet this principle has never truly been applied to foreign affairs. The stalwarts of the of the Enlightenment and the American and French revolutions saw foreign affairs in a most aristocratic light, to be conducted by and for the social elites. This view has never been rooted out of the Western psyche. While there have been instances of mass resistance to elitist foreign policy, such as the anti-Vietnam war movements, such challenges never included a majoritarian desire to see a democratization of foreign affairs in general.

In both domestic and foreign affairs, a large portion of the public is neither well informed nor well equipped, such that fruitful democratic discussion is often stymied. But at the level of principles, the two are treated completely differently. In domestic affairs almost all political actors and, more importantly, the citizenry either believe in, or pay lip service to, democratic participation. Often supposed democratic values are used as a cudgel, with accusing the opposition of acting undemocratically a time honored tradition of political fist fighting. Yet demands for more democratic participation, and information upon which to base that participation, are almost never made, certainly not by elites, when it comes to matters of foreign affairs. Those who make such calls are bullied and informed of their naiveté.

Instead, it is accepted that much of the information upon which foreign affairs is decided is to be kept secret. That such secrecy is at best a half truth does not seem to matter. Those who follow geopolitics are often able to surmise the actions, if not the desires, of major actors. This partly explains of the cries of “nothing new” at the release of the U.S. cables: the media commentators were already in the know. But the public is assured that they do not need to know, can not know, the details, the and certainly not the motives, least the security of the State be put in jeopardy.

Post drug war, post 9/11, this style of reasoning has bled over to domestic issues, particularly immigration and security, but the difference in how we conceptualize the role of democracy in foreign and domestic affairs remains strong. Wikileaks consciously and directly confronted this chasm with the release of the diplomatic cables. The target was not the diplomats themselves, or the diplomatic process, both of which do necessitate some level of immediate confidentiality, as all personal relations do. Rather, the target was the content of policy, the acts of U.S. foreign policy themselves, and the information upon which such acts are based. The cables are a means of exposure and confirmation.

Had the unjust applications of power exposed in the cables been aimed at domestic initiatives or individual U.S. states, outrage, even if one did not agree with it, would rightly be seen and defended as a democratic response. Many acts would likely be deemed corrupt or illegal. Yet we hear little but reproach of the publishers and supporters, with many of the most heinous applications of power going completely unreported and discussed within the U.S. mainstream.

Remember the outrage when it was exposed that the White House has met with representatives of the insurance, pharmaceutical, and hospital industries during the formulation of the last year’s health care reform? There are similar meetings recorded throughout the diplomatic cables, where business representatives express how the U.S. could best promote their company’s financial interests [6, 7, 8]. Yet the common opinion is that U.S. foreign policy should represent such interests (job creation!), not the will of the people.

There is the ideal of democracy and the reality, with the two looking very little alike. In domestic affairs the ideal still rules the hearts of citizenry, no matter how pitiful the reality may be. But the ideal has never been fully conceptualized with respect to foreign affairs. That is the challenge that Wikileaks has quietly presented the public: will you demand foreign affairs live up the same democratic standard as domestic policy?

There are certainly arguments against applying democratic ideals to foreign affairs, but only one seems, at first, to be unique: decisions in foreign affairs affect the citizens of more countries than just the one making a particular decision. Maybe guidelines, similar to those we call rights, would be necessary to democratize international relations (for example: no nation can kill citizens of another, except in self defense; no nation can impose sanctions on another without the agreement of a majority of other nations; etc.). Just as one can not vote away the rights of others (except, apparently, in California), governments could not violate the rights of other nations. Such ideas are not very far from much of the work the U.N. has already done, and do not seem to pose fundamental problems except in enforcement. Anyway, this objection ignores the reality that domestic decisions also often have serious foreign consequences; see the American war on drugs and the effects on Mexico for an appalling example.

In the end, it falls upon us, the citizens, to demand that the various mechanisms of democracy become entwined more thoroughly in foreign affairs. In the case of the U.S., this will require both a sea change in opinion, but also a possible constitutional amendment to strip the modern Executive of its near monopoly on foreign affairs. I’m not holding my breath. But Wikileaks has reminded us that the information necessary for wider democratic participation is out there, we just have to grab hold of it, understand it, and use it. To shy away from that task, in fear of an uninformed populace or poor decisions, is to allow an unaccountable elite to continue to hold the power.

July 01, 2010

The political rhetoric and popular media coverage of Elena Kagan's confirmation hearings has been filled with significant debate over matters of constitutional law. We've heard questions and answers (or non-answers) about the freedom of speech, about executive power, about balancing national security against constitutional rights, about guns, about religion, and about abortion. No doubt this form of inquiry is appropriate; senators are entitled to get some handle on Kagan's constitutional vision, even if President Obama's nominating her tells them most of what they need to know. Many of the Supreme Court's most controversial decisions involve questions of constitutional law, and they are the types of judicial opinions that are most salient to the public. The Senate Judiciary Committee has been appropriately doing due diligence for the people, whose interests they represent.

But what the people and the senators doing the questioning should know — but seem not to — is that the Supreme Court's docket is chock full of very consequential cases for Americans' lives that do not involve constitutional interpretation at all. A quick look at the statistics published annually by the Harvard Law Review for the last three terms reveals that more than half of Justice Kagan's work on the Court would be filled with questions of statutory interpretation, or the way in which judges derive meaning from the text of statutes. And yet we spend very little time pressing justices-to-be on how they would interpret the primary set of legal rules that govern life in America.

May 23, 2010

Dan Solove talks about this at Concurring Opinions. According to news reports, Tiger Woods is going to insist on a confidentiality clause in their upcoming divorce contract / settlement agreement with Elin Nordegren.

The interesting question to me is: Why?

Tiger Woods has pretty much already had his reputation destroyed. Everyone in the world already knows about his eighty-five cocktail waitresses, pornstars, and other mistresses. Those who are interested can ready dirty text messages he sent by doing a quick search of The Google. What can Elin add? Or rather, what can Elin add that damages Tiger's rep? The fact that he was a lousy husband? Lousy father? That his actions were hurtful? Um, yeah, we know.

The interesting question to law professors is apparently: Will this (potential, future) agreement be contractually enforceable?

Um, yes.

I mean, that's extremely basic contract law. If they do have this agreement and she breaches it, he can sue and get some or all of his money back. But but but, the reasoning is wrong! There are first amendment implications (because she's agreeing to restrict her speech)! (But there aren't because the state isn't depriving her of her right to free speech.) And... I don't know. What I'm mostly taking out of this is that my excessive eye rolling probably means I have zero interest in becoming a law professor. Or that I'm not interested in theoretical contract and speech problems and I'm not smart enough to do the sort of stuff our friend Brian does.

In other, unrelated, news, the Flyers just won a hockey playoff series. The Onion is right -- I didn't know.

In more unrelated stuff, this seems fitting with Monday fast approaching.